1. Rechtsstaatlichkeit in German Constitutional Law: an Overwiew Prof. Dr
Rechtsstaatlichkeit in German Constitutional Law: an Overwiew Prof. Dr. Jan Philipp Schaefer Munich University

2. Art. 20 sect. III Grundgesetz: “The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice”.

3. Rechtsstaatlichkeit in German Constituional Law: an Overwiew
I. Synopsis: Rechtsstaat and Rule of Law 1. Rechtsstaat and Democracy: Two images of Parliament – two ideals of freedom and liberty The British House of Commons The German Bundestag

4. Rechtsstaat in German Constitutional Law – an Overwiew
Rule of Law
Rechtsstaat
Ideal of Law: law as a result of an evolutionary and dialectical process, rooted in cases and judicial practice
Ideal of Law: Law as a result of voluntary creation according to political and social needs
Pursuit of inherent rationality of the legal system
Close Link between Parliamentary Democracy and Rule of Law
Parlimentary Democracy translates the judicial process into political procedures:
Parliament creates a confrontational political space where frredom of speech rules,
Clear and obvious differentiation between government and opposition (majority vote; First-past-the-post rule),
Direct and confrontational plenary dicussion.
Democracy as a spontaneous and egalitarian order whose irrationality contradicts the rationality of legal order.
Parliamentary Democracy should be based on unabridged discourse between all political parties
Parlament as a great „round table“
Broad coalition governments (proportional representation),
Democratic ideal is consensus, not conflict.

5. Rechtsstaat in German Constitutional Law – an Overwiew
Rule of Law
Rechtsstaat
Functions of Adjudication and Legislation:
Adjudication is pragmatic decision of individual cases according to the law of the land with respect to equity reasons,
Limited generalization of rulings following the ratio decidendi,
Legislation generalizes rulings which evolved from adjucitation,
Legislation is rather (accelerated) development of law than rule-making,
Strong coincidence between adjudication/ legislation to the „common sense“
Adjudication and legislation are part of a system of strict separation of constitutional functions
Legislation intends the making of rules of abstract and general quality
Adjudication means application of abstract and general rules of individual cases,
Principal rejection of judicial development of law and customary rights,
Strong coincidence between adjudication/ legislation to what is good „as such“ / material justice (Hegel)

6. Rechtsstaatlichkeit in German Constituional Law: an Overwiew
II. Semantic Aspects of Rechtsstaatlichkeit in German Constitutional Law
1. Three Concepts of „Rechtsstaat“
Formal Rechtsstaat,
Substantial Rechtsstaat,
Procedural Rechtsstaat.

7. Rechtsstaatlichkeit in German Constitutional Law: an Overwiew
2. Formal Rechtsstaat
„Rechtsstaat“ versus Feudal Government („Ständestaat“),
Self-commitment of the state by rules of abstrtact and general quality, resulting from constitutional procedures,
Government according to the laws,
Constitutional regulation of competences and organisation of state/ government.

8. Rechtsstaatlichkeit in German Constitutional Law: an Overwiew
3. Substantial Rechtsstaat
„Rechtsstaat“ as a justice-based constitutional regime,
Constitutional regulation of principles of justice, such as freedom, human rights, democracy, welfare state,
Commitment of the legislation to human rights,
Strong function of the principle of proportionality to limit the constitutional competences of government and legislation in the light of human rights,
Protection of legitimate expectation,
Constitutional obligation of the government concerning legal provisions to social balance and emergency response,
Interpretation of the laws in the light of human rights and fundamental principles of the state.

9. Rechtsstaatlichkeit in German Constitutional Law: an Overwiew
4. Procedural Rechtsstaat
„Rechtsstaat“ as parliamentary system, comprising procedures of equal democratic participation,
Focusing of constitutional adjudication in order to balance state actions,
„Due Process“ and guarantee of judicial review (at least in reference to each government action infringing individual rights).

10. Rechtsstaatlichkeit in German Constitutional Law: an Overwiew
III. Sub-principles of Rechtsstaatlichkeit
Government according to the law: precedence of the law and provision of legality,
Legitimate Expectation,
Legal certainty, legal transparency and legal clarity,
Separation of power
Independence of the judges,
Guarantees of fair trial,
Principle of proportionality/ constitutional balancing.